Hariz v Department of Communities and Justice

[2021] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hariz v Department of Communities and Justice [2021] NSWCATAD 129

Hearing dates:

On the papers

Date of orders:

18 May 2021

Decision date:

18 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

1. A hearing is dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013.

2.   The application is dismissed.

Catchwords:

ADMINISTRATIVE REVIEW – applicant seeking review of decision to require him to communicate with the respondent only via Australia Post – not an administratively reviewable decision application misconceived or lacking in substance

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Category:

Procedural rulings

Parties:

Raed Hariz (Applicant)
Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)
Legal, Department of Communities and Justice (Respondent)

File Number(s):

2020/00357622

REASONS FOR DECISION

1. On 16 December 2020 Raed Hariz lodged with the Tribunal an application seeking review of a decision made on 6 March 2020 by Jodie Cobbin, Director, Open Government, Information and Privacy Unit, Legal, Department of Communities and Justice. A copy of the decision was attached to Mr Hariz’s application. In essence, the decision concerned Mr Hariz’s email communications with the Open Government, Information and Privacy Unit and advised that for a period of 12 months from 6 March 2020 his email address would be blocked. Mr Hariz was also advised that he was welcome to send correspondence about an access application or review rights (under the Government Information (Public Access) Act 2009 (the GIPA Act)) via Australia Post.

2. The Department of Communities and Justice (the Department) has sought an order under s 55(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that the proceedings be dismissed on the grounds that they are misconceived or lacking in substance. The primary submission of the respondent is that the Tribunal has no jurisdiction to review the decision of 6 March 2020 that Mr Hariz was only to correspond with the Open Government, Information and Privacy Unit via Australia Post for a period of 12 months.

3. Directions in relation to the filing of submissions in relation to the dismissal application were made on 9 February 2021 and again on 23 March 2021. The Department also requested that the Tribunal make an order dispensing with a hearing and deal with the matter on the papers. At the directions hearing on 23 March 2021, Mr Hariz advised that he objected to the matter being dealt with on the papers as he may wish to cross-examine witnesses. No submissions have been received from Mr Hariz in relation to the dismissal application and he has made no request to cross-examine witnesses.

4. I am satisfied that it is appropriate to make an order under s 50 of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing as I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions. I note that the issue for determination is straight forward.

Does the Tribunal have jurisdiction to review the decision made on 6 March 2020?

5. Section 55 of the Administrative Decisions Review Act 1997 makes plain that the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”.

6. There is no provision in the GIPA Act which provides that a decision of an administrator to restrict a person’s mode of correspondence with an agency is an administratively reviewable decision under the Administrative Decisions Review Act. Mr Hariz has not pointed to, and I am not aware of, any other legislation which would provide for administrative review of a decision of this type. The decision made on 6 March 2020 is therefore not a decision over which the Tribunal has administrative review jurisdiction.

7. The application by Mr Hariz is therefore misconceived or lacking in substance and must be dismissed under s 55(1)(b) of the CAT Act.

Orders

1. A hearing is dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013.

2. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 May 2021